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Thursday, June 1, 2017

The Shirley McKie Fingerprint Misidentification Scandal

For most of the 20th century, the testimony of a prosecution fingerprint expert was never challenged by the defense. Jurors considered fingerprint identification infallible evidence, the gold standard of forensic science. However, due to a series of high-profile fingerprint misidentifications beginning in the late 1990s, this is no longer the case. More and more defense attorneys, in trials in which their clients have been linked to crime scenes through latent fingerprints, are now seeking second opinions from independent examiners. One of the most publicized latent fingerprint misidentification cases, featuring American and Scottish examiners, centered around a police officer in Scotland named Shirley McKie.

The Shirley McKie Case

In January 1997, Scottish officers from the Strathclyde Police Department responded to the scene of a murder in nearby Kilmarnock. Marion Ross, a 51-year-old bank clerk had been stabbed to death in her bathroom. Her ribs were crushed and she had been stabbed in the eye and throat with a pair of scissors that had been left stuck in her neck. There was no sign of forced entry. Police officers theorized that Marion Ross had been killed by one of the men who recently had been doing remodeling work in her home.

Shortly after the crime, the police arrested 23-year-old David Asbury, a construction worker from Kilbirnie in Ayshire. Although no latent fingerprints belonging to Asbury had been found at the scene, examiners with the Scottish Criminal Records Office (SCRO) identified a print on a container, a biscuit tin, found in the suspect's apartment, as being the murder victim's. The tin contained money the police believed the killer had stolen from the murder site. Asbury claimed that the money and the tin were his.

The all-important latent on the biscuit tin had been lifted at Asbury's apartment by Shirley McKie, a 34-year-old detective constable with the Strathclyde Police Department. Her feeling of accomplishment in discovering this key piece of evidence ended when she was called on the carpet for leaving her own print at the scene of the murder. SCRO examiners had identified a bloody left thumprint on the bathroom door frame as hers. According to Office McKie, she had gone to the murder site three times but had never gotten beyond the front porch. The SCRO examiners, therefore, must have made an identification mistake. Too depressed to work, McKie went on leave for two months.

In May 1997, just three months after his arrest, David Asbury was brought to trial in Glasgow. He still maintained his innocence. Shirley McKie took the stand at his trial and described lifting the latent off the biscuit tin in his house. On cross-examination, Asbury's attorney asked McKie if she had helped process the Marion Ross murder scene. McKie said she had not been inside the murder apartment. But, said the attorney, didn't SCRO fingerprint examiners identifiy one of the latents in the murder woman's bathroom as McKie's? Yes, they had, answered McKie. But didn't you just say you weren't in the apartment? Yes. So the SCRO examiners had made an incorrect fingerprint examination? That latent was not mine, replied McKie.

Following the 13 day trial, the jury chose to believe the SCRO had correctly identified the biscuit tin latent as the defendants and convicted him of murder. By implication, the Asbury jury believed that Detective McKie had been at the murder scene as well, and had committed perjury.

In March 1998, police came to Mckie's house and arrested her on the charge of perjury. At her trial in May 1994, two highly respected American fingerprint experts testified that the latent in the murdered woman's bathroom--Print Y7--was not McKie's. The jury, deliberating less than an hour, came back with a verdict in favor of McKie. The acquittal was an embarrassing defeat for the SCRO.

In December 1999, despite her perjury acquittal, Shirley McKie was dismissed from the Strathclyde Police Department. On suspension since March 1998, the dismissal made McKie ineligible for a pension.

Shirley McKie, in October 2003, sued the Scottish government for 850,000 pounds. She accepted an out of court settlement for just under that amount in February 2006. David Asbury won his appeal, and on retrial, featuring the two American fingerprint examiners testifying on his behalf, the jury acquitted him of murdering Marion Ross. Notwithstanding a good suspect in the case, no one would be tried for Marion Ross' murder.

Aftermath

In 2011, the Scottish Special Services Authority (SPSA) held hearings on the SCRO fingerprint misidentifications in the McKie and Asbury cases. The proceedings featured 64 witnesses giving 250 hours of testimony over a period of five days. The authors of the SPSA report, published on December 14, 2011, concluded that human error (rather than a conspiracy) was to blame for the misidentifications. (A lot of people believe there was a conspiracy and cover-up, especially in the McKie case. I am one of them.) The authors of the report also concluded that fingerprint identification should be treated as opinion-based testimony rather than fact-based. This recommendation angered members of the forensic fingerprint identification community worldwide.

After researching and writing my book, Forensics Under Fire, which contains a chapter on the Shirley McKie case, I agree that fingerprint identification testimony should be treated as opinion. In American law, only juries can determine what is fact and what is not. (For example, if a jury believed that O..J. Simpson did not commit the double murder, in law, that was fact.) When two forensic experts take the stand, one for the prosecution and one for the defense, jurors decide which expert represents the truth. They both can't be correct. Fingerprint identification, like the identification of human bite marks, handwriting, tire tracks, and footwear impressions, is subjective, and therefore subject to human error. It's opinion evidence. If it were otherwise, forensic science wouldn't have the dueling expert problem.

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Contributors

A graduate of Westminster College (Pennsylvania) and Vanderbilt University Law School, I am the author of twelve non-fiction books on crime, criminal investigation, forensic science, policing, and writing. I have been nominated twice for the Mystery Writers of America's Edgar Allen Poe Award in the Best Fact Crime Category. As a former FBI agent, criminal investigator, author, and professor of criminal justice at Edinboro University of Pennsylvania, I have been interviewed numerous times on television and radio and for the print media.
For more information about me, please visit my web site at http://jimfisher.edinboro.edu.